A divided panel held that 18 U.S.C. § 16(b) is unconstitutionally
vague. After examining the Johnson
factors, the majority determined:

Section 16's standard is imprecise in
all the ways that the ACCA's standard was imprecise; in each case, however, it
is arguably at least slightly less imprecise. The ACCA's standard referenced a
confusing list of examples; § 16's text references no examples at all. The
ACCA's standard encompasRehses a broad scope, as it considers post-offense
conduct; so does § 16's standard, though its scope may be at least slightly
limited by Leocal. The ACCA had occasioned judicial disagreement; so has
§ 16, though less. Comparing § 16's standard to the ACCA's standard, all we can
say with confidence is that § 16's standard is imprecise, although not quite as
imprecise as the ACCA's standard.

Our course forward is clear, however,
upon considering that Johnson was not a case at the very margins of
vagueness and non-vagueness. Johnson did not hold that the ACCA's
standard represents a minimum bar for precision; that is, Johnson did
not hold that any standard slightly more precise than the ACCA's is acceptably
precise. To the contrary, Johnson held that the ACCA's standard was so
imprecise that the Court was justified in departing from stare decisis.
Presumably, therefore, a marginally more precise standard could be
problematically vague. Section 16's standard is that marginally more
precise—yet still imprecise—standard.

Thus, considering each of the arguments
and nuances brought to our attention, we hold that § 16 is unconstitutionally
vague because, at bottom, § 16 requires courts both to imagine an
ordinary/archetypical case and then to judge that imagined case against
imprecise standard. Under Johnson, this means that § 16 is
unconstitutionally vague, and we so hold.

On the Court’s own
motion, a majority of the circuit judges voted
to rehear this case en banc.Oral
argument is tentatively scheduled for the week of May 23, 2016.Stay tuned.

Thursday, March 03, 2016

Public Comment Sought for Sentencing Commission Proposed Amendments

The U.S. Sentencing Commission released proposed amendments to the Sentencing Guidelines at the beginning of January. USSC Press Release.

Here is a link to the amendment related to the 4B1.2 crime of violence definition. In light of Johnson v. United States, 135 S. Ct. 2551 (2015), the amendment deletes the residual clause from 4B1.2(a)(2).

The Commission is also recommending amendments to 2L1.2, alien smuggling, child porn distribution with file sharing programs, age and vulnerable victim enhancements, conditions of probation and supervised release, animal fighting, compassionate release, and other miscellaneous amendments.